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RESPONSES TO TOASTS 

AT A DINNER GIVEN BY THE BENCH 

AND BAR OF NEW JERSEY 

AT THE 

WALDORF-ASTORIA, JANUARY 19, 1907 

TO 

VICE CHANCELLOR PITNEY 

ON HIS EIGHTIETH BIRTHDAY 



NEW YORK 
1907 




Gtm 



CcArawvou^v 'M . U.C\ryvtL5M^4t. 



The dinner was arranged by Messrs. Franh 
Bergen, Halsey M. Barrett, Richard V. 
Lindahury, Edward M. Colie, M. T. 
Rosenberg, Willard P. Voorhees and 
Samuel Kalisch. 

And there were present as guests of the 
Bench and Bar, Hon. Alton B. Parker, 
Hon. John 31. Dillon, Hon. Hampton L. 
Carson, Hon. John L. Cadwalader, Rev. 
James M. Buckley, D.D., and Mr. George 
R. Van Dusen. 



TOASTS 

The time has come, the Walrus said, to talk of many things. 

— Carroll. 

OUR GUEST Hon. William J. Magie 

He is a great observer, and he looks quite through the deeds of 
men. — Julius Ccesar. 

RESPONSE Hon. Henry C. Pitney 

I hold every man to be a debtor to his profession ; from the 
which as men of course seek to receive countenance and profit so 
ought they of duty to endeavor themselves by way of amends to 
be a help and ornament thereunto.— i?«con. 

THE IMPORTANCE OF THE JUDICIARY IN OUR 

SYSTEM OF GOVERNMENT . , , Hon. Alton B. Pakker 
Justice is the greatest interest of man on earth. It is the liga- 
ment which binds civilized beings and civilized nations together. 
Wherever her temple stands, and so long as it is duly honored, 
there is a foundation for general security, general happiness, and 
the improvement and progress of our race. — Webster. 

THE TRUE SPIRIT OF CHANCERY Hon. Hampton L. Carson 

I have a heart to feel the injury, 
A hand to right myself, and by my honour, 
That hand shall grasp what gray-beard law denies me. 

— The Chamberlain. 

THE VICE CHANCELLORS . . Hon. Frederic W. Stevens 
Three things are to be kept in conscience — 
Fraud, accident and things of confidence. — Moore. 

THE SUPREME COURT .... Hon. J. Franklin Fort 
And sovereign law, that state's collected will. 
Sits empress, crowning good, repressing ill. — Sir William Jones. 

THE BAR OF NEW JERSEY . . . Hon. John W. Griggs 
We surgeons of the law do desperate cures. Sir. 

— Beaumont and Fletcher. 

And when the wine was poured. 

And they had drunk what each desired, they went 

Homeward to slumber each in his abode. — Odyssey. 



Chancellor INIagie presiding, requested Rev. James 
31. Buckley to say grace, and after dinner the Chan- 
cellor said : 

"Gentlemen of the Bench and Bar of Xew Jersey, 
and you who honor us with being here as our guests : 
You all know the purpose of this gathering. We 
are here to do honor to our veteran Vice Chancellor, 
and to indicate in this public way the high estima- 
tion in which he is held by his associates on the 
Bench, by the Bar, and by the people of the State. 

"Before I proceed I am asked to read one letter 
that has been received from the Governor of the 
State, and it is so appropriate that it is proper that 
it should be read. It is addressed to Mr. Bergen. 

'The death of a relative prevents my accep- 
tance of your invitation to be present at the din- 
ner in honor of Vice Chancellor Pitney. Vice 
Chancellor Pitney's service to the State has been 
so conspicuous that I desired especially to extend 
to him the courtesy of my presence on this occa- 
sion, I had hoped, too, that this event would 
furnish an opportunity which I particularly 
desired before the close of my administration to 
say publicly how much our State owes to the 
Bench and Bar. The safety of life and property, 



CHANCELLOR MAGIE 

the necessary distinction between liberty and 
license, the preservation of our institutions against 
demagogic and socialistic influences, depend 
largely upon our courts and the legal fraternity. 
These have proven a bulwark against innovation 
that destroys, while at the same time they have 
interpreted our law in a way that enabled us to 
progress with safety. I have long felt that some 
recognition of this service should be made offi- 
cially by some one outside of the Bench or Bar, 
and I regret that I can not be with you to pay 
this deserved tribute.' 

"The committee indicated to me that I was ex- 
pected to make only a few remarks. If I desired to 
and intended to express all the grounds upon which 
this spontaneous outburst of affection and admira- 
tion for our Vice Chancellor is based, I should have 
to say more than a few words. But some words 
ought to be said, and I propose to read what I have 
prepared. 

"I think it is sufficient on this occasion to recall 
that Vice Chancellor Pitney on April 9, 1889, en- 
tered the Court of Chancery as Vice Chancellor, a 
court which had been adorned by many distinguished 
equity judges. From the time of Isaac H. William- 
son and Peter D. Vroom, Governors and Chancellors, 
who settled the foundation of our equity practice, 
through the terms of Chancellors Benjamin William- 
son, Henry W. Green, Abraham O. Zabriskie, Theo- 

[6] 



CHANCELLOR MAGIE 

(lore Riinyon and Alexander T. McGill, and under 
Vice Chancellors Amzi Dodd and Abraham V. Van 
Fleet, the Bar of New Jersey has been proud to 
think that no court in the land can display a succes- 
sion of judicial officers of greater ability and reputa- 
tion. It can be said that Vice Chancellor Pitney has 
measured up to the standard of his eminent prede- 
cessors. It can be said also that in the changed con- 
dition of modern affairs strange problems have been 
presented to the Court of Chancery unknown to our 
predecessors, arising largely out of the tendency to 
conduct business enterprises not by individuals, nor 
even by individuals who are associated as partners, 
but by corporations formed under the liberal laws 
demanded from and conceded by our legislature. 
With these problems, novel as they are, the Court of 
Chancery has had to deal, — and it can be said that no 
one in the court has dealt with them more success- 
fully than Vice Chancellor Pitney. He has adorned 
our equity reports with incisive and luminous opin- 
ions, in which the points decided are so expressed 
that his meaning cannot be mistaken, even by a re- 
viewing court. His capacity for work, his diligence 
in deciding cases, his unceasing devotion to his judi- 
cial duties have been admired by the Bar and envied 
by his associates. It must be confessed that at times 
some of the Bar have thought brother Pitney some- 
what exacting. If the apparently good case of a 
litigant has been put in peril before him because of a 
lack of preparation or the negligence of counsel, or 



CHANCELLOR MAGIE 

if counsel have appeared to evade the directions of 
the court, and especially if there has appeared an in- 
tent on the part of any one to mislead the court, 
there have probably been some words said, but on no 
such occasion has it ever entered the mind of any one, 
not even of the counsel around whose devoted head 
the lightnings flashed and thunders rolled, to con- 
ceive for a moment that the episode would in any 
degree affect the solution and decision of the case. 
The Vice Chancellor has retained not only the con- 
fidence of the Bar in his ability and integrity, but 
their admiration and affection for him as a man, be- 
cause they have found behind his manner a great 
heart of generous impulses. 

"And now I must inject into this festivity a note 
of sadness. The learned judge, the trusted associate 
and friend whom we have met to congratulate, a few 
days ago placed in my hands his resignation of his 
judicial office, to take effect not later than April 9th 
next, which date will mark the close of his eighteenth 
year of continuous service. He has concluded that at 
this period of his life he ought to retire and be re- 
lieved of the business of his laborious position. His 
associates will lose him with regret, the Bar will miss 
him and his vigorous ways, but all will admit that he 
has earned the right to a rest. 

"And now. Vice Chancellor Pitney, it only re- 
mains for me, as the head of your court, speaking for 
myself and your associates, as well as for the Bar of 
New Jersey, to congratulate you upon having this 



VICE CHANCELLOR TITNEY 

day reached the end of the eightieth year of your hf e, 
with your mental vigor and force unabated, and to 
^\dsh you many days of enjoyment and usefulness 
hereafter." 



VICE CHANCELLOR PITNEY'S 
RESPONSE 

"Mr. Chairman and Brethren of the Bench and 
Bar. What can I say, and how shall I say it? To 
say that this demonstration touches me deeply ; to say 
that I duly appreciate it; to say that I trust I am 
truly grateful for it, is to utter mere mocking plati- 
tudes. I have, at moments, as I sat here, doubted 
my own identity. I have been unable to realize that 
the uncultured, unambitious, indifferent, dreamy, 
lazy farmer's boy of sixty years ago is the recipient 
of this ovation. At other moments I have fancied 
that all this must be the work of a fairy or a magi- 
cian, or that it was a passing dream, the offspring of 
partaking of the juice of the Indian hemp or a de- 
coction of the beautiful and alluring poppy. But, no! 
Your joyous faces, your gleaming eyes, these distin- 
guished guests, all assure me that it is real. And 
with a sense of its reality comes an overpowering 
sense of my own unworthiness of it. I feel that I do 
not deserve it. No — let me rather attribute — I will 
attribute it to the superabmidant goodness of your 
hearts and the overflowing generosity of your souls, 
not to my own worth. 

[9] 



VICE CHANCELLOR PITNEY 

"And here it behooves me to say that I have, in 
years gone by, on many — too many — occasions, made 
heavy drafts on that goodness and generosity, by 
uttering in pubhc sharp and disagreeable words ad- 
dressed to some of you which must have given pain; 
and for those offenses I desire here and now pubhcly 
to express the sorrow I have always felt ; and to ask, 
what I am sure has already been granted, your par- 
don. 

"With regard to my judicial work of which the 
Chancellor as your chairman has spoken so kindly: 
If you think I have striven not to fall behind or be- 
low my brethren in our individual endeavors to up- 
hold and maintain the high standard of judicial ex- 
cellence set for us by our illustrious predecessors ; 

"If you think I have been conscientious, indus- 
trious, painstaking, zealous, attentive, and patient. If 
you think I have kept a mind open to every considera- 
tion which should influence my judgment, and closed 
to all else. Closed on the one side to the fancies, fads, 
follies, and clamor of the unthinking multitude, and 
to the ingenious and plausible arguments, so-called, 
of the unprincipled demagogue. If you think I have 
not been deluded into mistaking any of these for 
sound public policy. If I have been indifferent to 
the voice of the siren popularity. If I have not been 
misled by the dreams of the socialist. And if, on the 
other hand, I have been deaf to the more subtle and, 
therefore, more dangerous suggestions of wealth and 
power no matter what shape it may assume ; 

[lo: 



VICE CHANCELLOR PITNEY 

"If, in fine, you think I have kept my mind fixed 
solely upon the problem of mastering the case pre- 
sented and arriving at a just conclusion without fear 
or favor, and have had the courage to proclaim that 
result without regard to consequences to particular 
individuals ; in so far as I have succeeded in this re- 
spect in not falling behind my brethren, just so far I 
am willing to accept this testimonial as an assurance 
that I have achieved some degree of judicial success, 
and that I am warranted in understanding this tri- 
bute to mean 'Well done, thou good and faithful 
servant.' 

"And here I deem it not out of place to assert, on 
behalf of myself and every judge in this broad land, 
that w^hen in the course of judicial duty he shall have 
arrived at and proclaimed his judgment, he is en- 
titled, as a part of one of the three great and inde- 
pendent departments of the governmental system, 
both State and National, of this country, to the posi- 
tion of absolute independence and freedom from per- 
sonal criticism from any other person, either as an 
individual or as a member of any other department of 
the government. The man who attempts, except by 
lawful means, to influence the judgment of a judge 
commits a palpable, vulgar, and usually futile crime 
against the ordinary laws of the land. The man who, 
by word or deed, creates disrespect and incites dis- 
regard for the judgment of a judge, arrived at con- 
scientiously in the due course of the administration 
of justice, commits, in my judgment, a still more 

D13 



VICE CHANCELLOR PITNEY 

serious and a more dangerous offense, amounting to 
a crime against the nation at large, because it strikes 
at the very foundation of civil government. 

"But to return to my topic. Think not, my breth- 
ren, that the labors of these years have been onerous, 
or grievous, or irksome. No indeed. On the con- 
trary they have been joyous, exhilarating, and satis- 
fying, and they are now laid down solely because the 
infirmities of advancing years admonish me that my 
day of work is over and past and I am ready to say, 
'Let thine aged servant depart in peace.' 

"No. I hold that the man who does not enjoy and 
love judicial work is not fit to sit in a judge's chair. 
That the best judges do enjoy and love their work 
is proven by the conduct of the Federal judges, who 
continue work long after the dates when they are en- 
titled by law to retire on full pay. I say the work is 
agreeable— particularly that of an equity judge. 
For what can be more delightful than to be able to 
disentangle the knots into which business affairs are 
sometimes involved by the working of modern com- 
plex business machinery and methods; to ascertain, 
segregate, and weigh the varying interests of each 
party, and give to each its due value in the judicial 
scale, and strike a just balance. Or to imravel and 
lay bare a fraud into which a crafty designer has 
lured an unwary and innocent victim, and to restore 
the victim to his rights. Or to relieve against acci- 
dent or mistake or forfeiture. Or to compel a con- 
tractor to perform his contract and not leave the 

[12:1 



VICE CHANCELLOR PITNEY 

contractee to the uncertain remedy of damages for 
non-performance. Or to hold up to his duty a dis- 
honest or negligent trustee and compel him to re- 
store the estate of which he has despoiled his cestui 
que trust or to make good the losses which have 
arisen from his negligence. Or what more satisfac- 
tory than to be able to put forth the strong arm of 
the court and prevent threatened injury to person or 
property. These are the every-day work of an equity 
judge; and I am delighted to be assured that my 
work therein has not fallen behind that of my breth- 
ren, and has in some measure your approval. 

"But I must not forget that in this I have had the 
assistance, in all important causes, of able, faithful, 
and industrious counsel, without whose assistance my 
work would have been poor indeed : I believe that no 
court or judge in this or any other country ever lis- 
tened to more able, exhaustive, and ingenious, as well 
as instructive, arguments than have been addressed 
to me by some of those I see among you. And the 
credit of whatever excellence may in after years ap- 
pear in my judicial work must be divided with those 
great lawyers. 

"But the satisfying character of judicial work does 
not end with its completion. There is another ele- 
ment to be considered. To go back fifty-eight and 
more years, when I undertook the study of law, I 
found four small volumes of equity reports, Saxton 
and the three Greens, covering the work of Chan- 
cellor Vroom and Chancellor Pennington for thir- 



VICE CHANCELLOR PITNEY 

teen years; and exquisite work it was indeed. In 
those four volumes those great judges laid the broad 
and solid foundation of the structure of equity illus- 
tratio7i in our State. I say — illustration — because 
that is, after all, what they amount to, and they 
amount to no more. The fundamental principles of 
equity do not change ; they are forever the same, and 
have been since Aristotle's time. They are illustrated 
merely by their application and adaptation to the ad- 
vance of human society and the progress of business 
affairs. 

"From that time — 1848 — I have watched the erec- 
tion of the superstructure of the beautiful temple of 
equity in our State, of which we are all so justly 
proud, and have seen it rising gradually under the 
hands of such master builders as Williamson, Green, 
and Zabriskie. They, like Vroom and Pennington, 
stood by the ancient ways shown by Hardwicke, El- 
don, Grant and Kent. I had the pleasure and honor 
of a personal acquaintance with each of those New 
Jersey Chancellors, and in reading over their judg- 
ments I feel I can almost see their faces and seem to 
be in actual converse with them. They, from time to 
time, added to the rules of practice as circumstances 
showed the necessity of improvement, but they were 
hampered by the old and fixed practice of producing 
evidence. In Chancellor Zabriskie's time — 1871 — a 
radical and most useful departure was made by the 
introduction into the legislature by that great judge, 
and by the adoption by that body, of the act provid- 
ing] 



VICE CHANCELLOR PITNEY 

ing for the appointment of a Vice Chancellor, and 
for the examination of witnesses orally in the pres- 
ence and under the direction of the judge who is to 
pass upon the merits of the case. 

"You who are too young to remember the old sys- 
tem can hardly realize the great improvement in the 
efficienc}" of the court and in the reliability of its re- 
sults and in the cheapness and velocity of its oper- 
ations which that change produced. In that change, 
as many of you know, I claim to have had a hand. 
Having personally experienced the evils of the old 
system of making proofs, and observing that the 
Chancellor was overworked in his endeavor to keep 
up with the increasing business of the court, of my 
own motion and without suggestion from any one, 
I prepared a legislative act and handed it to Chan- 
cellor Zabriskie, who adopted in the present act all its 
provisions, without change, except as to the character 
of the new judges found in the first section. From 
that time forward the rules of practice of the court 
have from time to time been improved as rapidly as 
warranted by safety, until now we have as perfect, as 
simple, as facile, and as flexible a practice as can be 
found in any English-speaking countrj^ 

"It is simply a slander to say of our system of 
practice that it is antiquated and out of date and not 
adapted to the wants of the hour. I hope and trust 
that no enthusiastic reformer, deluded, lionestly, no 
doubt, into the foolish notion that he can by legisla- 
tion make those things uniform and similar that are 

CIS] 



VICE CHANCELLOR PITNEY 

in their very natui'e variant and different, and that 
he can make those things simple that are in their very 
nature complex and involved, will ever lay his image- 
breaking hands upon it. No, my brethren, the best 
and safest improvements in this department of 
human affairs are those that come by degrees accord- 
ing to the law of evolution, and not those changes 
that are made ijer saltum and lead to reaction and 
rebound. 

"The general structure of the temple of equity it- 
self, as distinguished from the mere procedure, has 
been added to since Chancellor Zabriskie's time by 
Runyon, McGill, Van Fleet, Green, and Grey, who, 
in their prime of life, have been removed from us, and 
has also been added to by others of those still liv- 
ing, until it has attained its present beautiful and 
symmetrical proportion; ever growing and never 
finished, and each layer or course recording in unmis- 
takable and indelible script the current and ever- 
varying phases of the progress of human society, 
human unrest, human activity, human enterprise, 
and human endeavor. Now I ask you, my brethren, 
is it not indeed an honor to have added here and there 
a stone to that edifice, if indeed I may hope that 
some of these additions have not marred its beauty 
or disturbed its symmetry? 

"The satisfaction arising out of the mere doing of 
the work is a mere fading memory. The echoes of 
those joyous moments will die away, but those 
silent monuments will be seen and read by future 

[16] 



VICE CHANCELLOR PITNEY 

generations ; and whatever is worthless therein I hope 
will be forgiven, as it must be laid aside and forgot- 
ten, but whatever is good and valuable w^ll endure 
and keep the memory of their author green, and 
prove a monument more enduring than classic bronze 
or marble. Surely, my brethren, there is the true re- 
ward. — But enough. 

"Now one parting word to all, especially the 
younger of you my brethren — may I add my pupils 
— who are still pressing upward undaunted and un- 
discoiu'aged along the steeper reaches of that rugged 
path that leads at last to that commanding plain 
where a wide knowledge of man and his multiform 
affairs ; a full and accurate learning in the law, reach- 
ing to and attaining such a famiharity with the fun- 
damental principles of justice and equity, as causes 
them, like household words, to rise spontaneously at 
the least demand for their use ; a conscience fully cul- 
tivated, carefully cherished, not morbid, but healthy 
and yet tender and sensitive to a mere suspicion of 
wrongdoing; a judgment founded on that indescrib- 
able faculty, common sense, matured by experience, 
— these quahties, united with sterling and unsulUed 
integrity and unspotted purity of personal character, 
combine to make that most noble and useful member 
of society, the truly great and wise lawyer and jurist. 

"My wish and hope for each and every one of you 
is that you may achieve that glorious and truly honor- 
able level, and may live to be eighty years old; and 
that on your several eightieth birthdays you may each 



HON. ALTON B. PARKER 

deserve and receive at the hands of your brethren 
such an outpour, such a veritable cloudburst of love, 
respect, and honor as has this evening overtaken and 
overwhelmed your undeserving and truly grateful 
guest, and made this the very red letter day of his 
Hfetime." 



THE CHANCELLOR, AS TOAST MASTER 

"The relation of our judiciary to our system of gov- 
ernment, is a theme that may be well treated of be- 
fore an assemblage of lawyers, and no one can be bet- 
ter fitted to treat of it than the distinguished gentle- 
man who sits on my left, who by his services in the 
court of last resort of the State of New York has won 
a national reputation. I introduce to you the Hon- 
orable Alton B. Parker." 

MR. PARKER 

"Chancellor Magie, honored guest of the evening, 
members of the Bench, and gentlemen of the Bar of 
New Jersey, I beg at the outset that you will accept 
my assurance of the appreciation of the courtesy 
which you extended to me in inviting me to join with 
you to-night in this tribute of respect which you pay 
to the distinguished guest of the evening. It is a 
great pleasure to you, as I know from personal con- 
versation with many of you, that the reputation of 

[183 



HON. ALTON B. PARKER 

the distinguished guest of this evening is as secure 
and as enduring, as long as courts of equity shall 
last, as is the reputation of our own great Chancellor 
of the past in this State. I thank you also for the 
privilege which you have given me to meet, as I have 
personally to-night, the members of the Bench gen- 
erally of your State. Throughout all its history 
New Jersey has been strong in the membership of its 
courts, and when I say it has been strong in its judi- 
ciary membership I at the same time pay a compli- 
ment to the Bar of New Jersey, for while a Bench 
may sink lower than the highest level of the Bar, it 
never can rise beyond it any more than a stream can 
rise beyond its source. 

"I have had additional pleasure to-night in meet- 
ing among the honored members of the Supreme 
Court Mr. Justice Fort, at one time a classmate and 
chum and fellow boarder at five dollars a week. 

"And now, gentlemen, thanking you again for the 
compliment of permitting me to join with you to- 
night in the honor which you do your distinguished 
guest, I proceed to consider the toast which you have 
assigned to me. 

"A government of laws, not of men, was the shib- 
boleth of the fathers of this republic. They were in 
large part descendants of the people who had de- 
vised, adopted, and enforced that palladium of Eng- 
lish liberty, the Magna Charta. They had inlierited 
a love of the liberty and of the equality before the 
law, that Englislimen had struggled for, achieved, 

C19] 



HON. ALTON B. PARKER 

and enjoyed. And their aim was to secure for them- 
selves and those who should come after them not only 
the right of self-government, but also the full benefit 
of that vast treasure-house of legal principles and 
precedents of both common law and equity, so pains- 
takingly applied and developed by England's judi- 
ciary — principles upon which they erected a system 
of law that protected alike the rich and the poor, 
measured their liabilities and responsibilities by the 
same standard, and secured both against official 
tyranny. 

"The fathers intended to assure beyond doubt to 
this people what Lord Chatham asserted to be en- 
joyed by the people of England: 

" 'The poorest man in his cottage bids defiance to 
all the forces of the Crown. It may be frail ; its roof 
may shake; the wind may blow through it; the 
storms may enter; but the King of England cannot 
enter. All his forces dare not cross the threshold of 
the ruined tenement.' 

"Lord Chatham's boast can be reiterated in those 
nations, and only those, where governmental power 
is limited by law, and the source of the law is the 
people. In full appreciation of this fact, the several 
constitutions were made by this people, and by them 
alone can these constitutions be changed. 

"They incorporated into the state constitutions 
generally the body of the common law, and specifi- 
cally those great principles of law which the lovers 
of the common law cherished : That no person be dis- 



HON. ALTON B. PARKER 

franchised or deprived of the rights and privileges 
of citizenship, unless by the law of the land, or the 
judgment of his peers; that trial by jury be in- 
violate ; that religious liberty be accorded to all ; that 
the writ of habeas corpus be not suspended except 
when the public safety demands; that no person be 
deprived of life, liberty, or property without due 
process of law, nor private property be taken for 
public use without just compensation, and that free- 
dom of speech and liberty of the press be not re- 
strained. 

"The powers of government they divided into 
three parts, executive, legislative, and judicial, each 
independent of the other in its own sphere. As the 
constitutions contain the supreme law of state and 
nation, the duty of preventing violations of consti- 
tutional provisions necessarily fell upon the judi- 
ciary. When Chief Justice Marshall, the great ex- 
pounder of the Constitution, with the concurrence of 
his associates, in a court which has proved to be the 
greatest in history, declared in Marburj^ vs. Madison 
that an act of Congress was null and void, because 
forbidden bj?- the supreme law of the people, the su- 
premacy of the law and the people as tlie source of 
law were established on firm foundations. ( In pass- 
ing it should be noted that twenty-four years before 
this decision was made the Supreme Court of New 
Jersey in Holmes vs. Walton had ruled that an act 
providing for a trial by a jury of six men was un- 
constitutional. ) 

1:21] 



HON. ALTON B. PARKER 

"More than a century has passed away since the 
memorable day on which the Supreme Court handed 
down that opinion of Chief Justice Marshall, and 
every hour of it has borne witness to the wisdom of 
the fathers in placing the law above the will of 
man. 

"We have seen in that time Congress and state 
legislatures pass, and chief executives sign bills that 
offended against either the federal or a state constitu- 
tion. The courts, however, have not failed in the 
performance of their duty, when appealed to by the 
people. Common law has been wisely developed to 
meet the changes of business conditions. Equity has 
correspondingly expanded to remedy wrongs that 
the law cannot fully reach. And the confidence of 
the people in, and affection for, the judiciary, have 
grown steadier and stronger. That confidence and 
affection are fully justified. 

"Bryce, in his 'American Commonwealth,' says of 
our judicial system: 'Few American institutions are 
better worth studying than this intricate judicial ma- 
chinery; few more deserve approbation for the 
smoothness of their working; few have more con- 
tributed to the peace and welfare of the country.' 

"To say that the confidence and affection of the 
people are fully justified, is not to say that we have 
always made the best possible selections. Neither is 
it to say that every judge has measured up to the 
high average standard maintained by the judiciary 
of the country. But I am justified in saying, and do 



HON. ALTON B. PARKER 

say that there is no class of officials that maintain so 
high an average for character and ability. 

"Still other elements, however, have broadened 
and strengthened the confidence of the people. The 
freedom of the bench from partizan political bias, the 
traditions of judicial ofiSce, the environment of the 
com'ts, the restraining influence of high-minded 
lawyers, the association with brother judges, the 
careful study of the law, and the keen love of justice 
which grows and extends with its ministration, to- 
gether with the absence of political ambition, give to 
the judge calmness of mind with which to perceive 
the right in times of unhealthful public excitement, 
and the courage to do the right as he sees it, though 
the heavens fall. Time and again the judges 
have stayed the fury of a storm raised by the spirit 
which cries: 'Away with law! Lynch him! Lynch 
him!' Every time it has happened, every thoughtful 
man familiar with the situation has thanked God for 
the wisdom of the fathers in providing for the su- 
premacy of the law, by designating its proper minis- 
ters, the judges, to protect that supremacy. 

"Of late, however, there has been a marked ten- 
dency on the part of some Legislatures and of some 
executives to protest against decisions that did not 
help toward an expansion of the powers conferred by 
constitutions, or that enforced constitutional limita- 
tions fixed by the people themselves. Two judges 
recently held, as one of them is said to have expressed 
it, that an act of Congress fixing the hours of labor 



HON. ALTON B. PARKER 

on railroads is not interstate commerce. The result 
has been a severe personal criticism of those judges, 
said by the press to have emanated from members of 
Congress and administrative officials. Their de- 
cisions are treated as an unwarranted interference 
with the lawmaking power. To emphasize it, the 
public are invited to contrast them intellectually with 
certain great debaters of Congress who voted for the 
bill. 

"Now those judges had to decide the cases before 
them. After listening to and considering the argu- 
ments addressed to them, it was their duty to render 
such a decision as they deemed to be required by the 
Constitution. And, of course, they did. They may 
have erred. All men err. If they did err, however, 
the people have provided tribunals for the correction 
of their errors. Either in the Circuit Court of Ap- 
peals or the Supreme Court of the United States, 
their error, if there was one, will be corrected. And 
corrected in the constitutional method, in an orderly 
and respectful way. 

"What then is the purpose of unkind criticism of 
judges who happen to take a different view of some 
propositions of law than do members of the executive 
and legislative departments of government? Is it to 
arouse a public sentiment, which it is hoped will lead 
the courts to forget their duty under the Constitution 
and the people who made it and thus to expand leg- 
islative and executive powers, or both? The legisla- 
tive and executive intimation here and there is, that 



HON. ALTON B. PARKER 

more could be done for the people were it not for the 
courts. The burden of legislative and executive sins 
of commission and omission, is thus sought to be 
shifted to the shoulders of the judiciary. The un- 
fairness of this attempt is readily apparent. 

"From whence came the special privileges against 
which protest is raised? From the courts? No, not 
in a single instance. They came by statutes passed 
by legislators, and in most instances approved by a 
chief executive. From whence came the monopolies, 
abhorrent to the common law for centuries back? 
Not from the courts, whether federal or state. Some 
of them received their life and encouragement from 
statutes, but the great majoritj^ have grown and 
spread simply because the executive officers of state 
and nation failed to make even an attempt to check 
them. 

"Not one particle of criticism can justly be lev- 
elled at the Judiciary for the wrongs of which com- 
plaint is now made. That body has always stood, as it 
stands now, ready to enforce the law when properly 
moved. Its members can neither be persuaded nor 
driven by any power into a forgetfulness of their 
oath to support the constitution of their respective 
states and of the United States. In the performance 
of that duty, they are entitled to, and should have, 
the outspoken and manly support of the Bar. For 
lawyers more keenly appreciate than any other class 
of men, the importance to the people of the main- 
tenance in all its integrity of the supreme law of 

[25] 



CHANCELLOR MAGIE 

state and nation, as it is written in the constitutions 
adopted by the people. 

"These constitutions have been changed by the 
people, and can be again when they will it. But 
neither the executive, nor legislative, nor judicial 
department has the power. Nor have they all to- 
gether that power. And we should resist any and 
every attempt on the part of any department to take 
it away from the people." 

THE CHANCELLOR 

"A few weeks ago a member of the Bar kindly sent 
me the copy of a Western law joui'nal published, I 
think, in St. Louis, and directed my attention to an 
editorial article in it. The editorial writer was be- 
moaning the immense increase of the number of re- 
ports in the different States and Territories of our 
country. He ventured to express the opinion that it 
would be better for the Bench and the Bar if they 
were all burned up; but from this holocaust he said 
three sets of reports ought to be preserved, and they 
were the reports of the Supreme Court of the United 
States, the reports of the Supreme Court of Massa- 
chusetts, and the equity reports of New Jersey. 

"I have taken great pleasure in calling this edi- 
torial discrimination to the attention of my brethren 
of the Supreme Court. But of course you will ob- 

1^61 



HON. HAMPTON L. CARSON 

serve that what attracts attention to the equity re- 
ports of New Jersey from other States is that we are 
the only State which has retained a separate equity 
jurisdiction, and continued to report its decisions in 
separate reports. I do not say that other States are 
not reporting decisions on equity questions, but they 
are contained in their other reports. Now we venture 
to think that in our equity reports will be found the 
true spirit of equity, and if the distinguished gentle- 
man who is to respond to the next toast, 'The True 
Spirit of Chancery,' finds any other spirit than that 
we have, we will be obliged to him. I introduce to 
you the Honorable Hampton L. Carson, late Attor- 
ney General of Pennsylvania." 

MR. CARSON 

"Mr. Chancellor, learned members of the Bench, and 
gentlemen of the Bar of New Jersey, I bring the 
cordial salutations of the Bench and Bar of your sis- 
ter State of Pennsylvania, and offer our felicitations 
to your distinguished guest upon an occasion of so 
much honor to him, and of dignity and interest to the 
profession. 

"The Bench and the Bar of these two States are 
not strangers to each other. In history, in blood, in 
responsibilities, they have much in common, and I 
can listen with good nature to the pleasantries at our 



HON. HAMPTON L. CARSON 

expense, but when I heard your Chancellor in cold 
blood allude to the possible gain from the destruction 
of our books, and of the propriety of burning some of 
them, I could not but recall the colloquy between 
Mr. Dunning and Lord Mansfield, when Dunning 
advanced a proposition which the Lord Chief Justice 
disputed : 'Why, Mr. Dunning, if that be law I might 
as well burn my books.' 'Don't your Lordship think 
that you had better read them?' 

"Jurists of New Jersey, you have enjoyed an ex- 
perience, which was denied to us, in the possession of 
a separate Court of Chancery. For reasons unneces- 
sary to be here detailed, the Crown of England never 
would allow William Penn, or his successors in the 
Proprietary government, to establish a separate 
Court of Chancery; but we have endeavored from 
time to time to make contributions to your juris- 
prudence. The Chancellor has good-naturedly ral- 
lied us and challenged the ability of a Pennsylvanian 
to point out an instance of a charitable gift such as 
falls within the jurisdiction of Chancery. I may say 
that in looking along this table I find that I can point 
to evidence in this very room of your being donees of 
the charity of Pennsylvania. Your Supreme Court 
Justice, Charles G. Garrison, and I were classmates, 
in the same class for four years in the University of 
Pennsylvania. The learned judge has on numerous 
occasions displayed an astonishing knowledge of 
medicine and surgery, and I am happy to say that he 
was a personal pupil of my father, who was a doctor. 



HON. HAMPTON L. CARSON 

Your Vice Chancellor, Lindley ]M. Garrison, was my 
own personal law student; and a son of the distin- 
guished judge upon my left, Judge Hendrickson, 
was also a jiu^^il of mine at the Law School of the 
University; I have had some baldheaded pupils as 
well. So you see that, vicariously, I have contributed 
to the judicial strength and learning of New Jersey. 
"The Spirit of Chancery can be traced by any in- 
telligent student of legal history far back to days 
when the Romans invading England subjected the 
Britons to Imperial sway; when wave after wave of 
conquest submerged the little island, and, later, when 
Saxon and Dane in succession gave way to the arms 
of the Normans, and there was finally evolved out of 
the fermentation, strife, and chaos of twelve hundred 
years that system of law which we are proud to recog- 
nize as the very foundation of our liberties,— the 
British Common Law. Into its veins there was 
poured by transfusion the blood of Old Rome, so 
that drop by drop the vital fluid which had been ex- 
tracted from the wisdom of ages by the jurists of 
Roman days in the fifth century became mixed in 
that great alembic in which was distilled the prin- 
ciples of justice, until the most precious elixir of the 
English race ran clear into the cup. Later there 
arose a conviction that from the too rigid forms of the 
common law there should be relief; that there was a 
necessity for the introduction of some principle of 
equitable interposition and the establishment of ex- 
traordinary tribunals; and there followed applica- 



HON. HAMPTON L. CARSON 

tions to the Chancellor for a jurisdiction of grace. 
Then equity, conscience, confidence, suppression of 
fraud, and courage to enforce a trust, could be found. 
Finally there was built up, century by century, an 
edifice constructed by the sons of the Temple and 
Lincoln's Inn. The maxims of the Science fell from 
the lips of ISTottingham and Hardwicke, Talbot and 
Eldon, Jessel and Selborne, Herschell and Hatherly. 
In your own State you have had Zabriskie, Green, 
Runyon, Williamson and INIagie; in our State we 
boast of Tilghman, Gibson, Sharswood and Mit- 
chell; in New York they point to Kent and Wal- 
worth; in South Carolina to Dessassure. Every- 
where there is exhibited a long line of expanding and 
ever-brightening principles spangling the dark and 
storm-tossed nights of England and America with 
the light of the stars to illuminate the pathway of 
men as they struggle in search of better things. To- 
day, instead of being vexed with that spirit of delay 
and obstruction, of growing bills of costs and bills of 
remitter and detainer of which Dickens wrote so 
sarcastically, there has been breathed upon the mass 
the modern spirit of progress, an intrepidity of rec- 
titude in the application of equitable principles, and 
modern Chancery has become like surgery in modern 
days, a legal antiseptic intended to prevent, rather 
than to cure, the ills of society ; intended to arrest the 
wrongdoer before the wrong that he threatens be- 
comes irremediable, and, better and higher than all 
that, extending its jurisdiction by way of prevention 

[30] 



HON. HAMPTON L. CARSON 

so as to seize vast aggregations of capital, — the 
strongest creatures born of the loins of the sovereign 
states, — and subjecting giants of industry and com- 
binations of violence to the supreme control of the 
law. In this sense, matchless indeed in their making 
for peace and order are the deeds which have been 
done by Chancellors. 

"That which we on our side of the Delaware recog- 
nize as the crowning glory of the work of the guest 
of this evening is not his learning, not his gift for 
clearness of expression, not his industry, not his 
sagacity, but the unflinching courage with which he 
has faced the duties of his office. Let others talk 
about practical exhibitions of morality, but men of 
our profession can challenge the literature of the 
world, scientific, popular, or religious, for any higher 
exhibitions of moral courage than are to be found in 
the reports of Courts of Chancery. Into the im- 
perishable fabric of your jurisprudence will be woven 
in separate and then in commingled strands the 
judgments and decrees of the guest of this evening, 
to stand the strain of storm and circumstance when 
wrapped about him by the citizen of to-morrow as an 
segis of protection. No rotten threads or gaudy tinsel 
will there be found, but fibres as honest as the hands 
that spun them. It will be an incentive to the Chan- 
cellors and Vice Chancellors of the future when read- 
ing of what he has said and done, to labor as faith- 
fully, as diligently, as intelligently, with an eye as 
open to the truth, with an ear as attentive to tales of 



VICE CHANCELLOR STEVENS 

wrong, with a heart as fixed upon the pole star of 
judicial truth, and with a head as wise as did this 
High Priest at the altar in your noblest Temple of 
Justice." 

THE CHANCELLOR 

"I have endeavored to express the sentiments of my 
associates upon the equity Bench, but it would ob- 
viously be a very unfortunate omission if they did not 
speak for themselves, and I call upon Vice Chancel- 
lor Stevens to speak for the Vice Chancellors." 

MR. STEVENS 

"The Vices of the Chancellor have become so numer- 
ous of late, that I suppose that it was thought that no 
counsel practising in the Court of Chancery would 
feel himself at liberty to speak of them in the way 
that they deserve; and, therefore, it was considered 
by the committee that in order to get a perfectly ac- 
curate portrayal recourse should be had to the Vice 
Chancellors themselves. It was argued, no doubt, 
that such is their love of what is equitable and just, 
that they would illustrate in practice what they 
preach from the Bench, and would negative the im- 
plication contained in those lines of Burns : 

" 'Oh, wad some power the giftie gie us 
To see oursel's as ithers see us.' 

1:323 



VICE CHANCELLOR STEVENS 

"Xot to disappoint this reasonable or unreason- 
able expectation, I will begin by admitting that the 
Vice Chancellors have faults, and that one of those 
faults is extreme youth. They were born, officially, 
of course, I mean, in the year 1871. If the Gov- 
ernor and the Bar Association have their way they 
are likely to die in the year 1909. I have said that 
they are young officially, but if our distinguished 
guest be a fair specimen I think they are young in 
other respects. Vice Chancellor Pitney eighty years 
young is more youthful than many a man forty 
years old. And our cousins, the English Vice Chan- 
cellors, died at a comparatively early age. They 
were ushered into the world by the statute 23 George 
3d, I think, in the year 1813, by the appointment of 
Sir Thomas Plumer to be the first Vice Chancellor. 
The last Vice Chancellor, Sir James Bacon, expired, 
at least officially, in the year 1886. W^hen you con- 
sider that the Chief Justice and the Chancellor can 
trace back their pedigree through nine centuries, 
that is but a brief period. And so the Vice Chan- 
cellors cannot point to such commanding figures as 
Sir Edward Coke, or Lord Hale, or Lord Mansfield, 
or our own great Marshall, on the law side, nor to a 
Bacon, an Ellsmore, an Eldon, a Kent, or a Story, 
on the equity side; but among our modern contem- 
poraries I think we are at least respectable. Shad- 
well, Knight Bruce, Ijangdale, Page-Wood and Sir 
William James are no inconsiderable personalities 
in English legal history; and Vice Chancellor Dodd, 

C333 



VICE CHANCELLOR STEVENS 

our first Vice Chancellor, for talents and varied 
learning, and for all those qualities that go to make 
the accomplished equity judge, will yield to none of 
his English brethren. 

"Three of our Vice Chancellors have passed away. 
Vice Chancellor Green was a good governor, but a 
better Vice Chancellor. His patience, his legal 
learning, his wide experience, his sound judgment, 
all, combined to make him a most acceptable judge. 
And who that ever practised before Vice Chancellor 
Van Fleet will fail to remember that figure, strong 
and erect, that judge impatient of wrong and quick 
to denounce it, — that vigorous mind which expressed 
itself in thoughts incisive and lucid, with a logic that 
carried all before it. And then there was Vice Chan- 
cellor Grey, so lately gone. He was a most pains- 
taking and laborious student of the law; an en- 
gaging personality who strove to do his full share 
of the work of the court while laboring under the 
heavy burden of the disease which finally took him 
from us. No wonder that with judges like these, 
directed and unified in their work by the Chancellor, 
the Court of Chancery has found favor in these later 
days. It is not surprising, that although it may be 
desired to alter the form, it is not intended to change 
the substance, of equitable procedure. If the Bar 
have their way the Chancery division of the Supreme 
Court will still perpetuate what is valuable in a sys- 
tem that has stood the test of two hundred years. 

"It may be proper for me to advert very briefly to 

1:34] 



VICE CHANCELLOR STEVENS 

some of the causes which have contributed to the suc- 
cessful o^ieration of the court. As long as trial by 
jury shall last, and I hope that it may last a long 
time, law and equity will continue separate. They 
were separate under the Roman jurisprudence; they 
have continued separate wherever Anglo-Saxon in- 
stitutions prevail, and, even when administered by 
the same judge, they are distinct. Now, specializa- 
tion is the order of the day. We find it in science, 
in the arts, in the professions. The vast body of our 
jurisprudence, under the stimulus of invention, of 
commerce, of the world-wide intercourse of men and 
nations, is becoming more and more complex. What 
more reasonable, what more in accord with modern 
methods than that separate branches of the law 
should be assigned to separate judges. Given judges 
of equal capacity and industry, it is a matter of 
course that those who devote themselves to special 
subjects will become more proficient in those sub- 
jects; will dispose of their cases more easily and more 
rapidly, and, what is of more importance still, will 
give better reasons for their judgments. Multi- 
plicity of appeal is the invariable concomitant of 
lack of confidence in the judge below. 

"Now another reason why our Vice Chancellors 
have met mth some success lies in the method of their 
appointment. They have been selected by an expert 
whose sole aim it has been to secure for his assistants 
those who could best aid him in the administration of 
the law. It is the very system which has given to 

n353 



VICE CHANCELLOR STEVENS 

England its admirable judiciaiy, a judiciary which 
like our own has illustrated in practice the story told 
of Frederick the Great. The king desired for his 
garden the adjacent land of a miller. He sent his 
agent to purchase it. The miller refused to sell, and 
the agent said to him, 'Why, my good fellow, don't 
you know that the king can take it from you without 
paying you anything for it?' And the memorable 
reply was, 'Is there not a Kammergericht in Berlin?' 
In the Court of Chancery during the last two hun- 
dred years we have had a Kammergericht, a court 
which has been ever ready by injunction to protect 
the property and the property rights of the humblest 
citizen against the assaults of authority, of indi- 
viduals, of corporations, however powerful, and as 
long as that court confines itself to the protection of 
property rights, and refrains from interfering with 
rights that may be called political or personal : rights 
which are confided under our law and constitution 
to other tribunals, will every citizen of this State be 
able to exclaim, with the miller, 'Have we not a 
Kammer gericht in New Jersey?' 

"Now it is not my intention to weary an assem- 
blage of lawyers with pointing out the excellencies 
or the defects of the system of equity procedure as 
we now have it. I simply wish to call attention to a 
single thing, and that is this: that in our modern 
equity procedure we have combined with what is 
good in the jury sj^stem that which was excellent in 
our own. Witnesses are examined, as in jury trials, 

1261 



VICE CHANCELLOR STEVENS 

viva voce, but we have these advantages. In the first 
place, the evidence about whose admissibihty there is 
a real doubt, is received, and it stands before the 
court and before the court of appeal, so that either 
court can make a decision on the merits without fur- 
ther rehearing. Then again, it is the right of the 
equity judge, if he is dissatisfied with the evidence, 
to call for further proofs, and if during the progress 
of a trial witnesses fail to appear, either by reason of 
sickness or for some other reason, the case can be put 
over and taken up where it stopped. 

"I do not mean to assert that trial before a judge 
of questions of fact is superior to trial by jury. I 
have always thought, and still think, that where the 
case turns upon the veracity of witnesses or involves 
a question of unliquidated damages, the decision of 
an intelligent and unprejudiced jury is more satis- 
factory than the decision of a single judge. Each 
proceeding has its merits and each perhaps its de- 
merits. Whatever mistakes the Vice Chancellors 
may in the administration of the law have committed, 
I think I may say at least this for them, that they 
have always been willing to listen and to learn. Lord 
Eldon and Sir John Leach, the third Vice Chan- 
cellor, were contemporaries. Eldon was not only a 
great lawyer, but a most careful judge. It is said 
that upon one occasion he held a case for advisement 
twenty years, and at the end of that period began his 
judgment with the words, 'I doubt.' Sir John 
Leach, on the other hand, was impatient of the argu- 

[3t: 



CHANCELLOR MAGIE 

ments of counsel and decided his cases without tak- 
ing time to consider them ; and the lawyers of West- 
minster Hall came at length to mark the difference 
by dubbing Eldon's court 'The Court of Oyer sans 
Terminer,' and the court of Leach 'The court of 
Terminer sans Oyer.' The courts of the Vice Chan- 
cellors, I need not say, are courts of oyer a7id ter- 
miner. 

"One word more. The abilities and learning of a 
judge are reflected in his opinions. Those of Vice 
Chancellor Pitney are contained in twenty-eight vol- 
umes of the equity series; they touch upon almost 
every branch of equity law; they contain masterly 
and illuminating discussions of the subjects to which 
they relate; they are an enduring monument to his 
laborious researches, and they constitute in them- 
selves a strong argument why a separate equity 
court, or division, if you please so to term it, should 
continue to explain and apply the rules and prin- 
ciples of equity jurisprudence." 

THE CHANCELLOR 

"This function would be quite incomplete if we did 
not hear from the Supreme Court. We all know that 
the nine justices of that court sit in the court of last 
resort, from which, when they are dealing with equity 
cases, they carefully exclude every equity judge ; and 
it has been known that they have thought that they 
knew more about equity practice and equity prin- 

1138:] 



JUSTICE FORT 

ciples than the judges of the court of equity. And 
they have sometimes ventured to reverse my decrees, 
even some when made on the advice of my brother 
Pitney. But I will venture to say that it is quite 
open to doubt whether they ever convinced him that 
he was wTong. 

"I call upon Mr. Justice Fort to respond for the 
Supreme Court." 

MR. FORT 

"Gentlemen of the New Jersey Bar, and that part 
of the audience which those who have preceded me 
have forgotten,— the ladies. It is indeed a great 
privilege to stand in this place upon this occasion, 
and to me the double honor comes in that I have a 
part in honoring the guest of the evening, and have 
been asked to speak for that, which must be at least 
modest to-night, — the great common law court, — the 
Supreme Court of the State of New Jersey. 

"The guest of the evening became a member of the 
Bar of New Jersey the year before I was born, and 
yet, it is over a generation since I was admitted to 
the Bar of our State. At that time, Henry C. Pitney 
was a recognized leader of the New Jersey Bar; 
famed as an advocate of great force, and a lawyer of 
exceptional ability. During the past eighteen years, 
he has exhibited that same character of leadership 
upon the bench. 

1291 



JUSTICE FORT 

"As typical of the Vice Chancellor, I am con- 
strained to tell an incident. In about the year 1876, 
when a young man, I was employed to defend a suit 
in the Morris Circuit. The action was upon a money 
bond, under seal. I conceived the idea that, under 
the statute which had then lately been passed permit- 
ting the setting up of the defence of the partial fail- 
ure of consideration under the general issue, with a 
notice of set-off, that this could be done under a plea 
of non est factum^ with such a notice. Issue was 
joined on this plea, and, at the trial the plaintiff 
proved his bond and rested. The case was before 
Mr. Justice Dalrymple. I opened my defence, and 
the justice was inclined to overrule my defence on the 
ground that under my plea nothing was in issue ex- 
cept the denial of the making of the bond. It was 
near adjournment, and I argued the question until 
court rose. The next morning, the judge decided in 
my favor, and I went on with my defence and won 
my suit. That evening, as I left the court-house, I 
met Mr. Pitney, and he greeted me this way : 'Well, 
young man, I hear you won on your plea this morn- 
ing.' I said: 'Yes, sir.' 'I was in court yesterday,' 
he said, 'I heard your presentation of the matter, and 
I thought you were right, and that the liberal con- 
struction you contended for should be given to the 
statute, but it took me until one o'clock last night to 
convince the judge that he ought to decide that way.' 
Naturally, I have always had a tender spot in my 
heart for Mr. Pitney. 

1:403 



JUSTICE FORT 

"He has carried into the court over which he has 
presided, that same broad, Hberal spirit of construc- 
tion. He has never sacrificed the right of the matter 
to the form of the issue or the imperfection of the 
pleadings. If I were to formulate a definition of 
Justice, from Vice Chancellor Pitney's public utter- 
ances and judicial opinions, this would be the defini- 
tion: 'Justice is the determination of the issue be- 
tween the parties, in accordance with the very right 
of the controversy, without regard to either form or 
forum.' But I am not to talk about the guest of the 
evening, however delightful that might be, but 'The 
Supreme Court,' the great Court of Common Law 
of our State. 

"It is a leading principle of equity jurisprudence, 
that equity follows the law,— but, to-night, the order 
has been reversed ; we have heard much about equity, 
and now, at this late hour, we are asked to say a little 
about the law. But that is in keeping with the equity 
judges of our time and State. They no longer fol- 
low the law, but move on and reach out, and claim 
everything in legal sight, as either directly or con- 
structively within their jurisdiction. Their judicial 
motto is that of the telegram of Zack Chandler to 
Pitt Kellogg in the Louisiana election contest in 
1876: 'Claim everything.' But the law courts for- 
give them, — they like it, and it does not harm us. 

"Jesting aside, however, the growth of Chancery 
litigation is indeed remarkable. Its encroachment 
upon the jurisdiction of the law courts is admitted. 

L4in 



JUSTICE FORT 

In our State, where the clear Hne of cleavage is still 
maintained, this fact is marked. But, through it all, 
it still remains true with us, that the line of demarka- 
tion between legal and equitable actions is distinct 
and carefully preserved. The cause, to a thoughtful 
observer, is not difficult of discernment. It, I think, 
lies in this : that our courts of first instance have been 
maintained as distinctly equitable or legal. There is 
no hybrid judge of anj^ court of first instance in New 
Jersey. The fountains of law and equity are pure 
with us, while our court of last resort hears and de- 
termines both classes of appeals. We then are able 
to hold a straight course in the division line between 
the jurisdiction of law and equity. 

"It has been sometimes said, by the unthoughtful, 
that equity principles suffered in our Court of Er- 
rors, owing to the predominance of law court judges. 
But tlie record will not bear out the truth of that 
statement. I make this statement, without fear of 
successful challenge, that the law judges in the ap- 
pellate court have extended equity principles and 
jurisdiction, by broad and liberal decisions, when the 
equity judges of first instance liave either denied or 
questioned that the remedy was in equity. 

"Probably no judge ever sat in any court of law 
whose mental characteristics were thought by the 
Bar to be more of the rigid common law character, 
than the late Justice Dixon. A great common law 
lawyer and judge. Few of his generation, or of any 
past generation, in our State, or elsewhere, surpassed 

[42: 



JUSTICE FORT 

him. Aiid yet, it was this judge who wrote the de- 
cision in Hart vs. Leonard, in 1886, in his early judi- 
cial career, and Boice vs. Conover, in 1901, in his 
later service. The same thing could be truthfully 
said of some of the opinions of the late Chief Justice 
Depue, and of former Justice Van Syckel. Take 
the Court of Chancery itself. No greater judges 
ever sat in that court than Henry W. Green, Ab- 
raham V. Van Fleet, and Henry C. Pitney. And 
yet, these three were all great common law lawyers, 
— distinctively so, in their practice. 

"Equity is the correction of that wherein the law, 
by reason of its universality, is deficient; and a law- 
yer, whose chief practice has been upon the common 
law side of the court, sees more clearly the defects in 
the common law in the administration of j ustice, than 
another might. 

"It is true that that great jurist. Chief Justice 
Beasley, was at times jealous of the encroachment of 
equity upon the jurisdiction of the courts of law. In 
Palys vs. Jewett he stopped them on the threshold 
of their entry upon the assumption of jurisdiction in 
cases of ejectment and tort, — and in Lembeck vs. 
Jersey City, he said, 'No,' to their taking from the 
Supreme Court its exclusive right to review muni- 
cipal action by the prerogative writ of certiorari. 
Each of these opinions are masterpieces, and have 
been universally deemed by the Bar to be rightly 
decided. 

"It would be a great relief to the Supreme Court, 



JUSTICE FORT 

in these days, if equity could only tackle a few tort 
trials. They ought to be thankful to the great chief 
justice for relieving them of them, if only in re- 
ceivership cases. 

"Prior to 1844, our Court of Chancery might be 
called half governor and half judge. It has grown 
to be a real court since then, with all this array of 
equity judges I see about me to-night. 

"In the 'Register and Calendar,' printed in Phila- 
delphia in 1774, a roster of the parliament of Great 
Britain and of all the officials of the Colonies is given, 
and the Supreme Court of New Jersey is stated to 
consist of Hon. Frederick Smyth, Chief Justice, 
Hon. Charles Reed, and Hon. David Ogden, Jus- 
tices, and it defines what this court is in this way: 
'This is a Court of Kings Bench Common Pleas and 
Exchequer.' We are still all that, as it is known to 
the British law. 

"I cannot well speak of the Supreme Coui't since 
1900, as I have been a part of it, but what a court it 
has been since 1844, as well as before. There has 
never been a time when a Jerseyman has had to blush 
for the court or its members. 

"Have you ever thought of the fact that there 
were but six chief justices in ninety-six years in the 
State of New Jersey, during the century that has 
preceded this? These chief justices were: Andrew 
Kirkpatrick, twenty-one years ; Charles Ewing, eight 
years ; Joseph C. Hornblower, fourteen years ; Henry 
W. Green, fourteen years; Edward W. Whelpley, 



JUSTICE FORT 

four years, and Mercer Beasley, thirty-three years. 
Six greater judges never sat in any court of any 
State. From 1860 to 1900 there were only twenty- 
four justices of the Supreme Court in the State of 
New Jersey. They averaged twenty years of ser- 
vice, and during all that period not one of them was 
ever refused a reappointment. Let me say to you 
this,— I think I can say it probably without offence: 
I honor one thing in the long rule of the party in 
ISTew Jersey to which I do not belong. For thirty 
years that party, notwithstanding it had all the con- 
trol and power in the government of our State, main- 
tained the Supreme Court of the State non-partizan. 
"Let me close by running off from my subject 
with a thought that came to me largely since I have 
been here. This occasion, if it has any basis at all, is 
based in friendship, and friendship is said by one to 
be 'the best thing that God can bestow upon us. It 
enhances every joy; it mitigates every pain.' Plato 
said: 'True friendship between man and man is in- 
finite and immortal.' I believe in immortality. It is 
not all of life to live, nor all of death to die. There is 
a hjinn somewhere which you all have frequently 
heard, which says of heaven that it is the place 'where 
friend holds fellowship with friend.' Occasions like 
this are but a foretaste, it seems to me, of that im- 
mortal fellowship. How delightful it is to gather 
here in heartfelt tribute to the guest of the evening 
while he is alive. The trouble with us is, that in the 
onrush of life we forget the men who are about us 



CHANCELLOR MAGIE 

and we wait until they are gone to praise their good 
works. We give them flowers in profusion after 
they are dead — wreaths and garlands and roses about 
their bier. But I say to you, my friends and breth- 
ren of the Bar, it is better to hand to the Vice Chan- 
cellor to-night a single rose while he is alive, in honor 
of what he has done for his State, for its people, and 
the Bar, than to fill a room with flowers after he has 
gone. 

"We do not do enough of these things; we do not 
gather in this way as frequently as we should. It is 
a splendid thing to recall the beauties of friendship, 
and to-night— though I speak them but feebly — I 
am sure I express the sentiments of my brethren of 
the Supreme Court when I say to Vice Chancellor 
Pitney, whom every one of us honors for his integrity 
and great learning, that we extend to him our felici- 
tations, and our all hail, as he rounds out his magnifi- 
cent eightieth year." 

THE CHAXCELLOR 

"The Bar of New Jersey cannot be better represented 
than by the distinguished gentleman who after at- 
taining the front rank of the profession in New Jer- 
sey was made Attorney General of the United 
States, and so became ex officio the head of the Bar 
of the country. I call upon the Honorable Jolm W. 
Griggs." 

:46: 



HON. JOHN W. GRIGGS 

MR. GRIGGS 

"May it please j^our honors, brethren of the Bar of 
New Jersey in which I am included, I would gladly 
address you as the ideal Bar of the world, had I not 
recently read of another Bar which strikes me as 
really ideal. In the United States Court recently 
established at Shanghai they had an examination a 
short time ago for members of the Bar. Eight candi- 
dates presented themselves, and out of the eight the 
judges admitted just two. In my opinion that 
creates an ideal Bar, and I understand that it is the 
opinion of some studious young gentlemen of the 
State that the examiners for admission to the Bar of 
New Jersey are trying to emulate the example of 
the court in Shanghai. 

"I do not mean to pronounce anj^ eulogy upon the 
Bar to-night. Not that they are not worthy of it, but 
I have observed that eulogies on the Bar or its mem- 
bers are left until thej^ are dead or have ascended to 
the Bench. 

"There is a good fellowship among the members 
of the Bar that is both commendable and admirable. 
There is no bond of fraternal unity in any of the 
guilds of London that is more strong and real and 
affectionate than that that exists among the brethren 
of the Bar. In fact, I think the church can hardly 
rival it, although they tell of a certain Bishop of the 
Episcopal church in the early days of this country 
who riding alone in his carriage through an unsettled 

1:47] 



HON. JOHN W. GRIGGS 

section of the country was held up by a highwayman 
and was commanded to dehver up his money, and he 
protested and said: 'Why, I am a Bishop of the 
Episcopal church.' 'Oh,' said the highwayman, 
'that is my church; drive right on.' 

"Many years ago an observant traveler wrote from 
France, — it was in the time of Louis 15th, — thus: 
'The lawyers of France have displayed more just and 
manly sentiments of government and have made 
nobler struggle against despotic power than any set 
of men in the Kingdom. It has, therefore, often 
affected me with surprise and indignation to observe 
the attempts to bring this body of men into ridicule.' 
What was true in that day is true in our day. I 
never could understand — I have n't made a philo- 
sophical analysis of it — why it is that the Bar as a 
body is a butt for ridicule, an object of jealousy or 
resentment to the populace. It seems to be so. Mr. 
Joseph H. Choate thinks that part of it is due to the 
fact that some lawyers take cases for contingent fees. 
Some of it may be due to the higher plea of neces- 
sity, and those that offend in this way may have the 
excuse of Falstaff : 'I, sometimes, leaving the fear of 
God on my left hand, and hiding mine honor in my 
necessity, am fain to shuffle, to hedge, and to lurch.' 

"But whatever the reason and whatever the cause 
of this unfavorable sentiment, it does not reach to the 
members of the Bar individually. You cannot find 
among any profession in any business or any trade 
so many men so much respected, so profoundly 

[48] 



HON. JOHN W. GRIGGS 

trusted, to whom men so universally look for leader- 
ship in all affairs of a public nature as the individual 
members of the Bar. They certainly are not worse 
than the other professions. I have heard it expressed 
something this way; Are you a lawyer? Win or 
lose, you get your pay. Are you a doctor? Kill or 
cure, you get yom* pay. Ai*e you a priest? Heaven 
or hell, you get your pay. 

"I do not propose to enlarge or extend my re- 
marks into the moral and ethical and legal domain 
that has been so fully and ably trodden to-night by 
the speakers that have preceded me. As to that I 
can only utter a wish similar in purport but not in 
text to the prayer with which a young clergyman 
closed some religious exercises. He said: 'If these 
exercises have kindled any spark of grace, Oh Lord, 
we pray thee water that spark.' 

"It is the Bar that furnishes the material for the 
Bench, and whatever credit and renown these judges 
or their predecessors have reflected upon the juris- 
prudence of New Jersy is a credit likewise to the 
Bar of that State. It is the Bar that stands forth as 
the guardians of the liberties of the people that are 
preserved and embodied in the constitutions of our 
country. When you enter upon yom* profession you 
take a solemn oath to uphold the constitution of the 
United States, and the constitution of your own 
State, and it is summoning the rights guaranteed by 
those instruments that the lawyer appears before 
these tribunals and demands in the interests of vested 



HON. JOHN W. GRIGGS 

rights the judgment of the court for his client ac- 
cording to the principles of these constitutions. And 
it is the glory and the pride and the honor of the Bar 
that they speak not words of revolution, but words 
that are intended to bring the judgment of the court 
squarely upon the fundamental platform of their 
country's constitution; and of all these judges none 
has been more independent, none has recognized 
more fully the absolute power of the Bench to decide 
without public blame or censure, if the decision be 
simply honest, — why, my friends, the Bar don't mean 
to permit their particular prerogative of criticising 
the Bench to be enjoyed by the general public. 

"Shall I give you what I think is the finest de- 
claration of what the independent judge should be 
that I have ever read in the English language? It 
was what Rufus Choate said in his great speech in 
favor of an elective judiciary in Massachusetts: 'He 
shall know nothing about the parties, everjrthing 
about the cause. He shall do everything for justice, 
nothing for himself, nothing for his patron, nothing 
for his friend, nothing for his sovereign. If on one 
side is the executive power, and the legislature, and 
the public,— the givers of his power, — the sources of 
his daity bread, — and on the other an individual, 
nameless or odious, his eye is to see neither, tending 
only to the trepidations of the balance; if a law is 
passed by a unanimous legislature, clamored for by 
the general voice of the public, and a case is before 
him on it in which the whole community is on one 



HON. JOHN W. GRIGGS 

side, and an individual, nameless or odious, on the 
other, and he beheve it to be against the constitution, 
he must so declare, or there is no judge. If Athens 
comes there demanding that the cup of hemlock be 
put to the lips of her wisest citizen, and he believes 
that he has not corrupted the youth, nor omitted to 
worship the Gods of the city, nor introduced new 
divinities of his own, he must deliver him, though the 
thunders light on the unterrified brow.' Such a 
judge has been our friend. Lubricationes viginti 
annorum, Blackstone said, is the period that should 
be necessary to fit a lawyer to be a judge; but 
here is our friend with his sixty years,— threescore 
years of experience as a student of jurisprudence; 
and now with his fourscore years he lays his bur- 
den down. Is he not entitled with the Apostle to 
say, 'I have fought a good fight, I have finished 
my course; I have kept the faith!' And we say to 
him henceforth through his hfe (which we hope shall 
be long), there is a crown of glory and honor and 
veneration and love for him on the part of the Bar of 
New Jersey which shall never fade away, and in the 
world to come a crown of righteousness which the 
Lord, the righteous Judge, will give him in that 
day." 



[Si: 



PROCEEDINGS AND ADDRESSES 

ON THE OCCASION OF THE 
ACTUAL RETIREMENT OF 

VICE CHANCELLOR PITNEY 

FROM THE BENCH ON 
APRIL 8, 1907 



At the Chancery Chambers in Jersey City on Mon- 
day, April 8, 1907, this being a regular motion day, 
Mr. Pitney sat as Vice Chancellor for the last time, 
his resignation from office taking effect the next day. 

At the opening of court Mr. Gilbert Collins said : 

"If the Court please, I have a motion to make ; and 
this being the closing day of Vice Chancellor Pit- 
ney's service it is especially addressed to him. It 
will not be litigated. Indeed I have reason to think 
that it will be unanimously supported by the mem- 
bers of the Bar here assembled. 

"For a long time, sir, you have graced the equity 
bench. The committee has asked me to say a few 
words on your retirement; and it is surely a very 
great pleasure so to do. 

"The years slip rapidly away. It seems to me but 
yesterday— and yet it is nearly forty years ago— that 
seven applicants for admission to the Bar were 
examined as to their qualifications, in the presence of 
the Court, by three practitioners of whom one was 
yourself. With one exception, and he no longer 
resident within the State, you and I, of judges, 
examiners and novitiates, alone survive. The leaders 
of the Bar of that time, and even those of a later day, 
are mostly gone ; the names of but five living persons 

i:-55: 



HON. GILBERT COLLINS 

precede yours on the rolL You look as vigorous as 
ever, presenting an example of that ripe maturity 
that a well-spent life will bring to one blessed with 
a strong, sound constitution. We look forward to 
many years of association with you. We are gratified 
that you do not have to preface yoiu' farewell to us 
with 'moriturusf You have not waited until de- 
crepitude has come upon you, but in full strength of 
mind, and body, as far as is perceptible, have seen fit 
to step aside for younger men. Retirement with you 
will mean, I think, continued labor, but of a different 
character from that you have so long performed. 
Except in the concluding of causes that may be 
pending, your judicial work will cease. Your 
friends feel that they cannot let the occasion pass 
without formally expressing a tribute of their re- 
gard. 

"You have been a great judge. Your judicial 
opinions will form a firm foundation for many yet to 
come. You have been a faithful, courageous judge. 
You have been a kind judge; for, although some of 
us have thought that your name should, perhaps, 
have been Boanerges, we have known that the thun- 
der was harmless, and simply the product of the in- 
tense nature and ardent temperament that make you 
what you are. Certainly at the end of your career 
you have the entire confidence and affection of the 
Bar. Your work, I have said, will endure. Where 
it has not met the approval of those whose duty it 
was to pass in review upon it, that has not been be- 

[56: 



HON. GILBERT COLLINS 

cause of a lack of legal knowledge or exhaustive 
study on your part, but has been rather, in most 
cases, because of the conservatism that rests in num- 
bers. The Court of last resort has not always been 
w^illing to take the step in advance that to you seemed 
proper. While you have been resolute and firm, you 
have never been opinionated. No judge has been 
more open to argument — no judge more willing to 
change his mind uj^on presentation of new aspects of 
a case. I have been a witness more than once of your 
coming into court after an argument on a preceding 
day when you had expressed yourself as adverse to a 
contention, and with the utmost frankness saying 
that you had seen that you were wrong. No judge 
can carry in his mind the whole body of the law, or, 
especially, of the equity jurisprudence which we 
have inlierited and developed in this State. The 
marvel to us has been that you apprehended it as 
nearly as you did; that you could at the close of the 
argument of an important cause dictate your con- 
clusions so completely as to need little or no revision. 
We have all wondered; we have all been proud of 
you. 

"The committee having charge of the banquet 
tendered you some little time ago, determined to 
embody the sentiment then expressed in something 
permanent that you and your children and your chil- 
dren's children might prize ; and this beautiful clock 
has been selected. It is not a 'horologe of eternity' ; 
but, as compared with human life, it is enduring. It 

[57] 



VICE CHANCELLOR STEVENSON 

will 'tick out the little lives of men' ; and as it meas- 
ures the remaining years, days, hours, aye seconds of 
the earthly life that may remain to you, it will, we 
trust, be a constant reminder of the affection that 
prompted its bestowal. Its chimes are those of 
Westminster Abbey reproduced. As they sound they 
will bring to your mind those courts of Westminster 
Hall, nearby, to whose judgments you have looked 
as the source of many of your own decisions; and 
their melody will be a symbol of our love. 

"My motion is that you accept this gift of Bench 
and Bar. I can speak only for the Bar — one of your 
colleagues will speak for the Bench. And let me add 
that during the remainder of the time, which we hope 
may be not short, that you are spared, we shall be 
your loyal friends, supporters, and admirers." 

VICE CHANCELLOR STEVENSON 

"Vice Chancellor Pitney, and brethren of the New 
Jersey Bar, I do not recall any occasion in my life- 
time when I desired more to find utterance than now, 
or any occasion when I felt less able to find adequate 
expression. I was asked ten or fifteen minutes ago to 
say something on this most interesting occasion, to 
represent in a measure and try to speak for the 
Bench of New Jersey. 

"I am unable to stand before you in such a repre- 
sentative capacity. I can only speak for myself. I 
do not venture to address Vice Chancellor Pitney. 

[58] 



HON. WILLIAM M. JOHNSON 

What I have to say I shall speak to you, my brethren 
of the Bar. 

"I have been on the Bench by the side of Vice 
Chancellor Pitney, virtually by his side, for just six 
years. During the first five years, as many of you 
know, I was associated with him here from day to 
day and week to week. I cannot tell you how gently, 
how considerately he received me and how enor- 
mously useful to me was my association with him 
from day to day. It cannot be possible that any new 
member of the law bench or the equity bench in the 
State can have greater advantages at the start of his 
judicial career than I had on account of my constant 
association with our venerable and beloved friend. 
He goes from the Bench followed by the love and 
esteem of all his brethren. We all regard him as a 
great and shining example of judicial success, and I 
am sure that he will carry into private life, if he goes 
into private life, the earnest wishes of all our hearts, 
that he will live many, many years, and that all those 
years will be crowned with happiness and peace." 

HON. WILLIAM M. JOHNSON 

"Mr. Vice Chancellor, it would be impossible to add 
effectively an}i;hing to that which has been said here 
and elsewhere in regard to your remarkable profes- 
sional and judicial career. You know without any 
additional words of mine of the esteem in which you 

[159] 



HON. WILLIAM M. JOHNSON 

are held by the members of the Bar. I do not know 
that this expression of their regard is at all necessary 
to assure you of the affection in which you have been 
held and will be held, sir, as long as life is spared you. 

"I think this is a day not so much of sadness, al- 
though we regret your departure from this position 
which you have graced so long. It is rather a day 
for congratulation that after a life of successful pro- 
fessional activity, after a life of judicial service, re- 
markable in many ways, and highly honorable, you 
are able voluntarily to retire from this position with 
full vigor of mind, with activities and powers of body 
almost unimpaired, with the capacity to enjoy life, 
and with the capacity to retain and meet the friends 
which you have made in all these years. I think you 
are to be congratulated, sir, that you are able to retire 
under such circumstances. 

"It is difficult to address you or to say a word in 
this presence without appearing to use the language 
of flattery ; but I may sincerely say that in your life 
and career is an inspiring example to the younger 
men of the profession. As they consider and study 
your earlier life, your professional earnestness and 
vigor, and the success with which you have dis- 
charged 3^our judicial duties, guided as you have 
been by the strongest desire to do justice, by a pas- 
sion for equity which has ever animated you in your 
official duties, — when these things are considered, 
Mr. Vice Chancellor, you appear an inspiring ex- 

[60] 



MR. FRANK BERGEN 

ample and an encouragement to those of the profes- 
sion who are following in your footsteps. So that 
you have the satisfaction of knowing that you have 
lived a life of usefulness, of great activity, which has 
been of value to the jurisprudence of the State, to the 
people of our Commonwealth and to the members of 
the profession. And we wish for you many happy 
years in the retirement of your home, where we are 
assured that you will not be idle, but where you can 
enjoy such activities as may please you and as may 
be found to be agreeable to your natural taste and 
inclination. And so, Mr. Vice Chancellor, we ex- 
press our regrets that you are leaving the Bench 
which you have long adorned and we give you our 
best wishes for your happiness and prosperity in the 
years to come." 

MR. FRANK BERGEN 

"One word more. As chairman of the General Com- 
mittee having charge of the ceremonies and fes- 
tivities designed to express to your Honor and to the 
public the appreciation of the Bench and Bar of your 
career as a jurist on the Bench, an advocate at the 
Bar, and as a citizen of the State, I rise simply to sec- 
ond the motion made by my friend, Judge Collins. 
I can add nothing to what has been said by those who 
have preceded me, and I am sure I can say nothing 
to express adequately the admiration and esteem of 
your fellow citizens." 

1611 



VICE CHANCELLOR PITNEY 

VICE CHANCELLOR PITNEY 

"My friends, I confess that I am entirely unprepared 
for this ; though I was informed by Mr. Bergen that 
something of this kind was to be done this morning, 
I did not expect all this — and I do not know what to 
say after what has been said to me this morning. 

"I did think that after my birthday ceremonies— 
I did think that my heart was full and my cup was 
running over. I did not think there was any room 
for any more; but I am not sure that there is any 
limit to human love, human respect, and human 
gratitude. I hope my gratitude is equal to your love. 
I feel as if it is, and yet I don't know— I don't know 
that I am capable of feeling all I ought to feel to- 
wards you. I cannot believe you have been flatter- 
ing me; I must believe that this is all earnest and 
truthful and sincere. And, if it is, how must I feel, 
and what can I say? 

"I have just been through something like this 
quite unexpectedly in Philadelphia at the annual 
dinner of the Camden Bar last Saturday night. I 
was there as an ordinary guest without expecting 
anything more than the treatment due to such, but 
they made the occasion almost like that birthday din- 
ner in New York. 

"Now I do wish to say something and I will repeat 
something that I said at Philadelphia. 

"There are young men here and there are old men 
here. I say to the members of the Bar, old and 

1621 



VICE CHANCELLOR PITNEY 

young, your individual characters for probity, your 
individual characters for straightforwardness, your 
individual characters as lawyers, are your capital. 
Your individual character in the community, and 
your having the confidence of the community as up- 
right men, as men faithful to your clients, as men 
who do not live by trickery practised on the court or 
on the jury, but as merely desiring to see justice 
done to your clients — your character for all that; the 
confidence and belief of the community that you are 
an honest man, and a faithful man, is your capital; 
that capital cannot be taken away from you. 

"And I wish to impress it on the young men that 
you should not start out in life as lawyers feeling 
that you must succeed by hook or by crook, but start 
out to build yourselves up on that sure foundation I 
have alluded to, that will last as long as you live. 

"When I was a young man studying law with old 
Judge Whitehead, he said to me: 'Henrj^ a good, 
faithful lawyer will always be taken care of by the 
community; the people want him; and thej'- will 
keep him, and they will take care of him,' and I have 
lived to see it. 

"I have said to a great many young men, and I 
will repeat it to the Bar generally, don't encourage 
young men to go into the law unless they are pre- 
pared by a proper preliminary education. A great 
many boys sixteen, eighteen, twenty years old feel 
as if they would like to be lawyers. Don't discour- 
age that feeling, but discourage their attempting it 

1631 



VICE CHANCELLOR PITNEY 

unless they have a proper preHminary education. 
Because where there is one in a hundred not properly 
prepared that will succeed, the other ninety-nine 
don't succeed, and they are hampered all their life- 
time for want of a proper preliminary education. By 
that I mean an expansion and strengthening of the 
mind by exercise, and by the accumulation of infor- 
mation generally, to fit them for the Bar. 

"I have said further, don't be in a hurry to get to 
trying cases except as juniors; and the remark is 
prompted by an act I saw somebody prepared to in- 
troduce in the legislature— something like what was 
called the Five Counsellors Act— providing that 
young attorneys who are licensed as attorneys merely 
might be permitted to appear in the higher courts as 
counsellors on the certificate of some ten or fifteen 
gentlemen of the bar. Now, don't try that. Don't 
try to instruct a court until you know something 
about instructing a court. That is the business of 
counsel — to instruct the court. You may prepare as 
well as you can, you may study your case, and you 
must study it, and you may, as you think, have every 
fact, and you may have, as you think, all the law ap- 
plicable to that state of facts, and have it all in a brief 
before you — and when you get to the trial or argu- 
ment some little change in the facts will change the 
whole character of the case, and you will be lost if 
you have n't sufficient general information of the 
law, and general readiness born of experience to 
meet it. 



VICE CHANCELLOR PITNEY 

"Those two remarks I made to the West Jersey 
Bar, and I made another remark to j^omig men that 
I will repeat here. I don't see many young men 
here, but I do want to reach young men. Never 
make a statement of fact to a court or to a judge 
that you are not pretty sure is accurate. Never try 
to get a temporary advantage by little misrepre- 
sentations to the court. You are sure to be found out ; 
and you have n't any idea how soon the court learns 
upon what individual lawyers they may rely — upon 
whose statement they may rely, and how it facilitates 
business ; how much easier it is to get along by having 
the court understand that when you rise to make 
some statement of fact they can rely on you. 

"Now, I make these remarks, not because I think 
that they are particularly needed, but because they 
are fundamental, and they are the basis of good law- 
yers and successful lawyers. 

"You have spoken of my career; and I will in an- 
swer repeat what I said to those gentlemen at Phila- 
delphia Saturday night. I said: 'I have been look- 
ing this thing over for sixty years and I think you 
may take what I say as founded somewhat on ex- 
perience, and I wish to say that since I came upon 
the Bench of New Jersey and came into such close 
acquaintance with the Bar, both of West Jersey and 
East Jersey, I have observed with great pleasure and 
satisfaction a decided improvement — a decided im- 
provement, and when I say it I mean it— in the gen- 
eral tone and character of the Bar. And it is one of 

1165] 



VICE CHANCELLOR PITNEY 

the gratifying thoughts arising out of my experience 
as a judge, that the Bar of New Jersey has improved 
under my eyes ; and it is to-day a greater and a better 
Bar than it was eighteen years ago. It is due to you 
to say that much, and it should be an encouragement 
to continue in that improvement and elevation — gen- 
eral elevation of the character of the Bar. It is no 
flattery. Young men are making better law;y^ers, 
they are studying harder; they are trying to live up 
to the standard of a high class of lawyers— better 
than they were when I came to the Bar. 

"There were giants in the earlier days; there are 
giants now at our Bar. These are men that are men, 
and they are men because they work. 

"I was asked on Saturday night by a judge of the 
Court of Errors and Appeals who sat by me at the 
table why I did not undertake to print some impres- 
sions, some of my impressions of the English Bench 
and Bar. I told him I could not do that. 

"But I will say now that the difference between 
the English Bar and our Bar is this, that the labor of 
the American barrister is a great deal heavier than 
that of the English barrister in that the former has 
such a wide field of authorities to go through. The 
leading English barrister often has a yomig briefless 
barrister, who is ambitious and has money to live on, 
to work for him, called a devil. The barrister has a 
great brief handed to him— and the brief there is not 
what the brief is here: it is a history of the case, a 
statement of the facts, and all that sort of thing. 

1661 



VICE CHANCELLOR PITNEY 

Well, that barrister is a fifty or one hundred guinea 
man ; he doesn't open his lips unless well paid. He has 
not time to study all the brief and hunt up the law — 
although the range of authority is small as compared 
with ours — so he hands that over to his devil. The 
devil goes to work and hunts up all the authorities 
for him and receives no other compensation than his 
own personal improvement as a lawyer. And then 
the great barrister never prepares and takes into 
court any such arguments as you do here. You will 
see the great barristers there go into court with three 
or four sheets of paper pinned together at the corners 
and their whole argmiient is made from that. 

"You will find in the reminiscences of Sir Charles 
Russell, afterwards Lord Russell of Killowen, fac- 
simile reproductions of arguments, notes of famous 
arguments, all on note paper. 

"I sat in the House of Lords two or three days wait- 
ing to hear Sir Charles Russell argue a cause — waiting 
for his turn to be reached — and when he rose to speak 
he had three or fom- sheets of paper pinned together. 
'Xow,' he says, 'My Lords' — they all sat around, 
each in a great chair with a little table before it, and 
every one had a good-sized blank book where he took 
notes of argument — he commenced: 'Now, your 
Lordships, I make so many points in this case. IMy 
first point is so and so' ; and then he looked around to 
see when they had all written it down and waited un- 
til it was all down before he would go on. 'My sec- 
ond point, your Lordships, is so and so' ; and looked 



VICE CHANCELLOR PITNEY 

around to see that every one of them wrote it down. 
'My third point is so and so.' When he got through 
with that prehminary he began to talk a little, then 
the judges began to talk. It was then a mere con- 
versation across the table between gentlemen ; that is 
all, and that is the ordinary style of argument over 
there. 

"And English judges, except in the House of 
Lords— all the judges in the intermediate courts- 
are expected in more than ninety-nine out of a hun- 
dred cases, to deliver their judgments at once; and 
during the argument the authorities are brought in 
and examined. Nobody is in a hurry. You would 
suppose there was never to be another cause argued. 
Limitation of time for argument is something that 
would be considered— well, I don't know how to 
characterize it. You all know what I think of it. 
But I want to say to you that in England the counsel 
limit themselves. They are paid to make their argu- 
ment, and when they are through they quit and the 
quicker they can get through the better for them ; and 
I assure you that a lawyer in those courts that does n't 
talk to the point finds it out very soon. The court 
has a way of indicating very plainly when counsel 
wander and waste time. 

"I received a very fine compliment this morning 
from your first speaker about some oral opinions 
that I don't think I deserve. The English judges 
are expected to decide at once and this practice af- 
fects the character of their opinions. They are not 

nes] 



VICE CHANCELLOR PITNEY 

such fine opinions as we get in this country. The 
EngHsh judges don't have time or opportunity to 
consider their cases except in the court-room during 
the argument ; the books are brought in before them ; 
they stop the argument while they read the cases. 
That plan has its advantages in the way of expedit- 
ing business, but its disadvantage is that the judges 
don't have time or opportunity to put their reasons 
carefully in writing, and it means a great deal of 
loose language, in a sense, inaccurate language, used 
by those great English judges. But they are all 
highly educated and drilled men ; they are all drilled 
to think and talk like a book, and it is perfectly won- 
derful to hear them deliver oral opinions. They are 
admirable; but the results are not equal to the best 
opinions in this country, nor are their arguments 
equal to our arguments, because they are oral, they 
are offhand, and they have not studied the case as our 
lawyers study them. 

"I was once with a lawyer in London talking and 
I remarked : 'You have got great barristers here that 
can talk like a book, but there are some scrawny fel- 
lows in the United States who can hardly speak that 
will print an argument that will beat your best.' 
That is where the Bench of the United States has a 
decided advantage over the English Bench. It is 
that you are compelled by the rules of the court to 
print your arguments as well as your case, and the 
result is that there is a more thorough examina- 
tion of every case, as there ought to be with such 

[69] 



VICE CHANCELLOR PITNEY 

a variety and great scope of conflicting thoughts 
from different States in this country. It follows 
that our Bar is in a sense a higher class here than 
in England and the Bench is in a sense a higher 
class than in England. But the English Bench is 
made up with the utmost care and they are the ablest 
men undoubtedly, or they would not be able to do the 
business. They receive high salaries, so that the very 
greatest and strongest-minded lawyers seek positions 
on the Bench. 

"The English courts are able to accomplish much 
more business in the same time than ours. But why? 
One reason I have already given. In almost all the 
cases they give the case but one consideration. An- 
other is that a cause is never postponed on account of 
the absence of counsel. The court there is like the 
car of Juggernaut. When a cause is reached it trav- 
els right over it and if the senior counsel is not pres- 
ent the junior counsel must do the best he can. The 
argument and consideration proceeds. Another rea- 
son is that a great many steps in an English cause, 
especially on the equity side, which in our courts come 
before the judges, are decided over there by a class of 
judges called chief clerks who are a sort of under- 
study to the regular judges, so that the latter spend 
their time wholly in disposing of the very merits of 
the case, and the lawyers And it to their interest to 
present those questions as briefly, as rapidly, and as 
carefully as they can. 

"But while it is true that the English judges are 



VICE CHANCELLOR PITNEY 

able to dispose of more business in the same time than 
our courts can with great respect, I do not think they 
do it as well. But enough of that. It has served my 
purpose if I have been enabled by it to relieve myself 
in any degree of the embarrassment I felt at the re- 
ception I have just received at your hands. 

"I must believe you are sincere, and I really can- 
not express my appreciation. I feel as if I had lived 
for something. It is something to have acquired the 
love, and respect, and honor, of such a set of men as 
the Bar and the Bench of New Jersey ; and I ^vish I 
could make you believe and feel that I appreciate it, 
but language fails me. I cannot do it. 

"Now as I rode along in the car this morning after 
I had read the morning paper, I thought — what shall 
I say about that clock, for I knew it was to be a clock, 
and the thought went through my mind just as it 
came from the lips of your speaker. I thought — a 
clock will remind me how much faster time goes with 
an old man than a young man ; how I am approach- 
ing the end. And then there will be the chimes. 
When I hear them I can think of the gentlemen who 
gave me that clock; and then I can hope — that is 
what passed through my mind — I can hope that it 
will never go out of the State of New Jersey ; I can 
hope that it will always be in the possession of some 
descendant of mine — there is a prospect of several — 
and that it will never be in the possession of anybody, 
any descendant of mine that anybody in New Jersey 
will be ashamed of, and that he or she may point to it 

n7i3 



VICE CHANCELLOR PITNEY 

and say with pride, there is something that my grand- 
father, or great grandfather, received from the 
Bench and Bar of New Jersey as a mark of their 
love and esteem. Oh, that is my hope, and, my 
friends, I beheve it is your hope. I will place it 
where I shall see it and hear it every day as long as I 
have sight and hearing, and every time I shall see or 
hear it I shall think of you. And I shall teach my 
children to remember whence it came without open- 
ing the door to see the inscription on it ; and I hope 
they won't be any the worse for it; and, I repeat, I 
hope there won't any of you be ashamed of any of 
them that may be in possession of that monument. 

"Now all I can say to you is farewell. I thank you 
from the bottom of my heart for all the beautiful 
things that you have said and done for me ; for all the 
assistance you have been to me in the labor that I 
have performed here as a judge; for all the kindness 
you have shown; for all the forbearance with my 
foibles and weaknesses ; and for all that you have said 
this morning; and for all you have here done, and 
now may I say with farewell — God bless every one of 
you. I love you all and respect you all, and wish the 
very best for every one of you. I hope you believe 
that. Farewell." 



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